Sri. G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. The case of the complainant began in the year 1989 when she made an application to the opposite party for allotment of a house under “own your house” scheme. She was allotted a house bearing No.276 at Vijayanagar III Stage, Mysore and was asked to pay Rs.80,000/- in instalments. Later on the opposite party informed her that the price of the house had been enhanced to Rs.92,500/-. As she did not have sufficient funds to make payment she applied for a loan. However, the sanctioning of the loan got delayed and the opposite party cancelled the allotment for failure to make the payment within the stipulated period. The complainant then approached the Hon’ble High Court of Karnataka challenging the cancellation. An order was passed in 1998 directing the opposite party to allot the same house and if it is not available for allotment then a similar house could be allotted. <br /> <br /> 2. Pursuant to such direction in 1999 the opposite party allotted house bearing No.288 at Vijayanagar III Stage, Mysore and asked the complainant to deposit Rs.92,500/- within 60 days. She complied with the demand. However, in 2000 the opposite party instead of giving possession of the house demanded a further sum of Rs.1,59,223/-. This demand, according to the complainant is unreasonable, unscientific and against the order of the Hon’ble High Court. She says she is unable to raise any additional sum of money and that she has to be given possession of the house as she has paid the money initially demanded by the opposite party.<br /> <br /> 3. As her letters and legal notice to the opposite party did not give the desired result she has filed this complaint. Her prayer is that the opposite party be directed to give possession of the house bearing No.288 by quashing the demand for additional sum of Rs.1,59,223/-. She has an alternative prayer in the form of refund of Rs.92,500/- paid by her together with interest at 18% p.a.<br /> <br /> 4. The opposite party has filed a cryptic version stating that the complaint is hit by Section 64 of the Karnataka Urban Development Authorities Act and that in any case there is no deficiency in service. There is, also, a defence that the complaint is barred by time. In the affidavit filed by the opposite party it is stated that the complainant knew that the provoisional price of the house was Rs.92,500/- and the additional sum has been demanded after the final price was fixed. According to the opposite party the final price of the house is Rs.2,85,328/-. It is, also, pointed that the complainant has once again failed to pay the balance amount despite the final notice.<br /> <br /> 5. From the rival contentions the following points arise for our consideration:<br /> a) Whether the complainant proves that the opposite party has rendered deficient service?<br /> b) Whether the complaint is barred by time?<br /> 6. We have answered the above points as under:<br /> Point 5(a): In the affirmative<br /> Point 5(b): In the Negative<br /> <br /> REASONS<br /> <br /> 7. Points 5(a) and (b):-It serves no purpose to discuss the happenings which took place between the parties prior to the order passed by the Hon’ble High Court on 29.5.1998. It is essential to reproduce the operative portion of the order passed by the Hon’ble High Court. It reads as under:-<br /> “If the house remains unallotted and in the possession of the second respondent, the second respondent may, on a representation and undertaking by the petitioner that she will pay the present prevailing allotment rate, consider allotting the same house to the petitioner or(on) revised terms. If the house has already been allotted and is not available, the second respondent shall inform the same to the petitioner within six weeks of receipt of this order and the petitioner may apply for allotment of any other suitable house. The second respondent may consider allotting any other house available to the petitioner at the present allotment rate, if petitioner fulfils the eligibility criteria. It is made clear that the above observation shall not be construed as creating any right for allotment in the petitioner. It is only meant for the sympathetic consideration by the second respondent in accordance with law”[emphasis supplied].<br /> <br /> 8. The present case of the complainant is based on the highlighted portion of the above order. She says that she was asked to pay Rs.92,500/- and she paid it. According to her such payment is towards full price of the house. The final price of the previous house No.276 allotted to her was Rs.92,500/-. <br /> <br /> 9. The allotment letter dated 26.10.1999 sent by the opposite party reads as under:<br /> “ಈ ಪ್ರಾಧಿಕಾರದ ನಿರ್ಣಯ ಸ೦ ಹೆ.ವಿ.19 ದಿನಾ೦ಕ 31.10.98ರ ಮೇರೆಗೆ ವಿಜಯನಗರ ೩ ನೇ ಹ೦ತ ಬಡಾವಣೆಯಲ್ಲಿ ಎಲ್ ಐಜಿ ಮನೆ ಸ೦ಖ್ಯೆ 288 ಮ೦ಜೂರಾಗಿರುತ್ತದೆ. ಮನೆಯ ಅ೦ದಾಜು ಬೆಲೆ 92,500/- ಗಳಾಗಿರುತ್ತದೆ”. <br /> <br /> 10. Hence, it is clear that no representation was made by the opposite party that Rs.92,500/- was the final price of the house. The final price of the house was conveyed to the complainant through a letter dated 9.5.2000. She was asked to pay the balance of Rs.1,59,223/- and take possession of the house. A time lag of 7 months between the date of allotment and date of intimating the final price is reasonable provided the house was under construction at the time of allotment. If the house was built long back there is no need to fix a tentative price as the final price itself can be informed to the allottee. <br /> <br /> 11. It is the contention of the complainant that houses bearing numbers 288 and 288 C are different. According to her after the orders of the Hon’ble High Court she was allotted house number 288 the price of which was Rs.92,500/- only but at the time of giving possession they gave house bearing number 288 C the price of which is Rs.2,85,328/-. However, on going through the file produced by the opposite party we find no material to accept this contention. It is true that when the intimation of allotment was given on 26.10.1999 the house number was mentioned merely as 288 which in all later correspondence became 288 C. But there is no evidence to conclude that 288 and 288 C are different houses.<br /> <br /> 12. On going through the original office file produced by the opposite party we find a few letters and documents the contents of which is not found in the pleadings of the parties. For the purpose of this case we have picked up two important documents found in the file. First is the letter written by the complainant on 22.5.2000, and the second is the possession certificate dated 25.4.2000. <br /> <br /> 13. The complainant has not stated anything about the condition of the house in her complaint. In her letters dated 17.1.2000 and 22.5.2000 has written that the house allotted to her does not have doors and windows and the walls are not plastered. She has stated that the house must have been constructed about 20 years back. The opposite party has not given any reply to this letter except demanding interest on Rs.1,59,223/-! In fact the opposite party’s demand as on 8.11.2004 was Rs.2,85,328/-. This is apart from the money already paid by the complainant. <br /> <br /> 14. It is surprising that possession certificate had been prepared to be given to the complainant, even before the final price of the house was fixed. Both the original and copy of the possession certificate dated 25.4.2000 are in the file and they are signed by the complainant. It says that the complainant having remitted Rs.92,500/- being the full price of the house is being given possession of the same. Surprisingly the complainant herself does not say that she has signed on the possession certificate. But that will not prevent us from viewing the act of the opposite party seriously. On one hand they have obtained the signature of the complainant on the possession certificate acknowledging the receipt of the entire sale price and on the other hand they have demanded more money for the house. It is, also, pertinent to note that the date of the possession certificate is 25.4.2000 while the date of their letter wherein demand for Rs.1,59,223/- was made for the first time is 9.5.2000/-. Whether they not aware of the final price of the house at the time of obtaining the signature of the complainant? Further, should it not have been the other way round? The usual procedure is, ascertainment of the final price, informing the same to the allottee, receive the payment from the allottee and then issue the possession certificate. Here the opposite party appears to have done exactly the reverse of it. This act of the opposite party not only amounts to unfair trade practice but also show cases the state of affairs in the office of the opposite party in poor light. After all the opposite party is a statutory body. A reading of the office notes found in the file reveals that till 25.4.2000 there was not a whisper of any additional demand. It suddenly arose on 7.7.2000. <br /> <br /> 15. Fixing a provisional price for a house under construction is alright provided the construction is completed and the final price is arrived at within reasonable time. But if the house was constructed long back as alleged by the complainant in this case, then fixing the final price in the year 2000 that too after obtaining her signature on the possession certificate would be highly objectionable. The opposite party has not stated that the house allotted to the complainant was under construction when it was allotted to her in 1999. As there is no clarification as to the age of the house allotted to her or any denial of the allegation that the house allotted to her was old we conclude that the house allotted to her was indeed old. Looked from another angle the practice of the giving only tentative price at the time of allotment is very deceptive. Here the opposite party says the tentative price is 92,500/- and then gives a bill for Rs.1,59,223/-. Can the estimation be off mark by such a huge margin? An allottee accepts the house based on the tentative price thinking that he may not have to pay a huge final bill. One can imagine his shock when a final bill running into lakhs of rupees is handed over. He is put to hobson’s choice. Either he has to beg, borrow or steal and pay the balance or run the risk of forfeiture of amount already paid. Though it is a settled principle that Consumer Fora can not go into the pricing issue, such enormous delay in communicating the final price amounts to at least deficiency if not anything else.<br /> <br /> 16. The deficiency on the part of the opposite party has arisen on several grounds like not communicating the final price of the house, not issuing the possession certificate despite obtaining the complainant’s signature and allotting an old house for which there was no necessity to fix a tentative price. Therefore, we answer the point in the affirmative. <br /> <br /> 17. Point 5(b):- Neither party has terminated the contract. One party is saying that the house allotted to her is unfit for inhabitation and that the price fixed for such a house is too high. The other party is claiming interest on the unpaid balance without actually canceling the allotment. As, the cause of action is continuous, the complaint is not barred by time. Hence, we answer the point in the negative.<br /> <br /> 18. The complainant has made an alternative prayer which in any case she is entitled to. She has sought refund of the amount paid by her. From the available records it is evident that she availed a loan to pay this amount. This amount has remained with the opposite party from December, 1999. The complainant is entitled to get back this amount with reasonable interest. From the flow of events it becomes clear that the complainant has suffered a lot of mental agony for over 15 years. For obtaining a house from the O.P., she has knocked at the doors of justice twice. It gives raise to a suspicion that the O.P. was upset that the complainant obtained a favourble order from the Hon’ble High Court. This must have lead to allotment of an old house. This is a fit case to award nominal compensation to mitigate the suffering of the complainant. Also, pertinent is the fact that she took a loan to pay Rs.92,500 and has paid interest on it. Let us not forget that the house allotted to the complainant is a LIG house meant for low income group<br /> <br /> 19. In view of the following we proceed to pass the following order:<br /> <br /> A. Complaint is allowed.<br /> B. The opposite party is directed to pay the complainant Rs.1,59,750/- comprising of Rs.92,500/- paid by the complainant and interest at 12% thereon from 14.12.1999 being the date on which she paid it. The said amount shall be paid within a period of two months from the date of this order failing which it shall carry interst at 12% p.a thereafter until the date of payment.<br /> C. The opposite party shall pay the complainant compensation of Rs.5,000/- for the mental agony suffered by her and the said amount shall be paid within two months from the date of this order failing which it shall carry interest at 12% p.a thereafter until the date of payment.<br /> D. The opposite party shall pay the complainant cost of Rs.1000/-.<br /> E. Give a copy of this order to both parties according to Rules.<br /> F. Keep Xerox copies of the letter written by the complainant dated 22-5-00 and possession certificate dated 25-4-00.<br />